State v. Wafer

2013 Ohio 2565

• Court: Ohio Court of Appeals
• Decided: June 21, 2013
• Docket: 2012-CA-37
• Status: Published

Opinion

[Cite as State v. Wafer, 2013-Ohio-2565.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellate Case No. 2012-CA-37 Plaintiff-Appellee : : Trial Court Case No. 2011-CR-629 v. : : QUENTA WAFER : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 21st day of June, 2013.

...........

LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. #0067714, Robert Alan Brenner, LLC, Post Office Box 341021, Beavercreek, Ohio 45434-1021 Attorney for Defendant-Appellant

.............

HALL, J.,

{¶ 1} Quenta Wafer appeals from his conviction and sentence following a no-contest plea to one count of trafficking in heroin, a first-degree felony.

{¶ 2} In his sole assignment of error, Wafer challenges the trial court’s denial of a

suppression motion.1

{¶ 3} The record reflects that Wafer was charged with numerous drug offenses under

three case numbers. He moved to suppress the evidence against him, and the trial court held a

December 14, 2011 suppression hearing. On January 13, 2012, the trial court overruled the

motion, which concerned drugs found in Wafer’s home. As part of a negotiated agreement, Wafer

then pled no-contest to the heroin-trafficking count mentioned above. All other charges were

dismissed. The trial court imposed an agreed eight-year prison sentence. This appeal followed.

{¶ 4} The facts underlying the present appeal are set forth in the trial court’s

suppression ruling as follows:

On August 11, 2011, officers from the Southern Ohio Federal Assistance

Task Force (SOFAST), in response to a request for assistance from the drug unit

of the Springfield Police Department, went to the defendant’s residence at 714

Rodgers Dr., Springfield Ohio to execute an arrest warrant for the defendant.

SOFAST officers went onto the porch while other officers took up positions in

front of the porch and around the house, some with firearms drawn. One officer

knocked on the door a number of times announcing the presence of the police.

After a few minutes, the defendant approached the door, then walked away back

into the room. A female resident, Nesha Gatewood, then came to the door and

opened it. The officer informed her of the purpose to arrest the defendant and was

permitted to enter the residence. The doorway entered into the living room where

1 Although Wafer’s appellate brief contains two assignments of error, he has withdrawn the second one. 3

the defendant could be seen on the couch. Other officers then entered the house to

secure it for safety of the officers. The defendant surrendered to the officers

without resistence. On the mantle of the fireplace, in plain view, officers observed

a plastic bag which contained a substance that appeared to be heroin. At that time,

the SOFAST officers turned over the defendant to the Springfield Police officers

and left. One of the drug unit officers was sent to request the issuance of a search

warrant for the house.

A search warrant was obtained and the house was searched pursuant to the

terms of the warrant. During this search, drugs and firearms were discovered

inside the residence.

(Doc. #19 at 1-2).

{¶ 5} Based on the foregoing facts, the trial court held that “the officers acted lawfully

within the parameters of the arrest and search warrants.” (Id. at 2). As a result, the trial court

found no grounds for suppressing the evidence.

{¶ 6} “In reviewing a decision of a trial court on a motion to suppress, an appellate

court gives broad deference to a trial court's findings of fact. * * * But whether the facts found by

the trial court justify suppression of the evidence is a question of law subject to de novo review.”

State v. Anderson, 2d Dist. Montgomery No. 24678, 2012-Ohio-441, ¶ 10. Having reviewed the

record, we conclude that the trial court’s factual findings are supported by the

suppression-hearing testimony. Applying those facts to the legal issues before us, we also find

that the trial court properly overruled Wafer’s motion.

{¶ 7} In his appellate brief, Wafer acknowledges that police lawfully executed an arrest 4

warrant at his residence. He also admits that “upon arresting him at his couch, they saw heroin in

plain view, and they obtained a search warrant based on the plain view of the heroin.”

(Appellant’s brief at 4). Wafer nevertheless argues that the officers unlawfully used the arrest

warrant to obtain evidence. He complains about the officers entering the residence rather than

asking him to come outside. He also complains that they needlessly conducted a protective sweep

of the house. He asserts that the “whole plan was to have the SOFAST officers go through the

entire house and report back what they could see in plain view.” (Id. at 5). He reasons that “this is

not a case where the execution of an arrest warrant inadvertently led to the discovery of

contraband in plain view that warranted a subsequent search warrant.” Instead, he maintains that

“the officers by calculation and design used the arrest warrant as a substitute for a search

warrant.” (Id.).

{¶ 8} Upon review, we find Wafer’s argument to be unpersuasive. The record reflects

that police lawfully entered a house Wafer shared with his girlfriend to execute a warrant for his

arrest. It is well settled that “an arrest warrant authorizes the police to enter into an individual’s

home to seize him.” State v. Gardner, 135 Ohio St. 3d 99, 2012-Ohio-5683, 984 N.E.2d 1025,

¶22. Police had no obligation to attempt to arrest Wafer outside.

{¶ 9} Once inside the home, police saw heroin on a fireplace mantle in the living room

with Wafer. Under the plain-view doctrine, police may seize evidence without a search warrant

when (1) the initial intrusion providing the observation was lawful, (2) discovery of the evidence

was inadvertent, and (3) the incriminating nature of the evidence was immediately apparent. State

v. Hunter, 2d Dist. Montgomery No. 24350, 2011-Ohio-6321, ¶31. That test was satisfied here.

The arrest warrant justified an intrusion into the living room, and the officers immediately 5

recognized the substance on the mantle as heroin. (Suppression Tr. at 9). In addition, nothing in

the suppression-hearing transcript suggests police knew in advance they would find heroin in the

living room. Therefore, discovery of the heroin was inadvertent. See State v. Halczyszak, 25 Ohio

St.3d 301, 303, 496 N.E.2d 925 (1986) (reasoning that police cannot make a planned, warrantless

seizure by relying on the plain-view doctrine when they know in advance what they will find in

plain view and purposefully maneuver themselves to see it). Contrary to Wafer’s argument on

appeal, we note too that “mere observation of an object in plain view does not constitute a

search[.]” State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶17.

{¶ 10} Finally, Wafer’s complaint about the protective sweep is not an issue. Although

officers conducted a protective sweep of the residence, no additional evidence was found during

that process. Additional contraband was found only after police secured the house and obtained a

search warrant for it. (Suppression Tr. at 23-25, 32). Therefore, we need not decide whether the

protective sweep was unjustified.

{¶ 11} Based on the reasoning set forth above, we find no error in the trial court’s denial

of Wafer’s suppression motion. His assignment of error is overruled, and the judgment of the

Clark County Common Pleas Court is affirmed.

FAIN, P.J., and DONOVAN, J., concur.

Copies mailed to:

Lisa M. Fannin Robert Alan Brenner Hon. Richard J. O’Neill